Ross v Commissioner of Corrective Services

HIS HONOUR: This matter comes before me as the Duty Judge by way of a motion filed by the plaintiff on 5 February 2026, seeking leave to commence proceedings against the Commissioner of Corrective Services (“Corrective Services”), pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). The plaintiff is currently in prison, serving a sentence in respect of a conviction for murder. He is seeking, however, to pursue an appeal in respect of that conviction.

He was convicted in 2013. The nature of his complaint is that during a transfer from one prison to another, during his period of custody, his personal possessions and some important legal documents were lost. He says that based on the information he has and based on what he has been told by Corrective Services, it is likely that these documents and other items were stolen by persons unknown, but he asserts, someone working for Corrective Services.

Mr Ross has prepared an extensive affidavit, which I have read. He appears by AVL. He tells me that unfortunately he does not have a copy of the affidavit in front of him, but I assured him that I have been through that affidavit and he is well familiar with the documents contained therein.

Importantly, it is apparent from the annexures to the affidavit that it has already been accepted by Corrective Services that some items were lost during a transfer. This is because, after some negotiation, Corrective Services offered to pay Mr Ross a sum of money, that is, $850, in respect of his missing property. After negotiation, Mr Ross agreed to that sum and signed a document agreeing he would not pursue any further claim in respect of the items, for which he was being compensated. However, those items did not include the important legal documents, which he says were also lost.

In other words, the agreement not to pursue Corrective Services in respect of those items for which he has already been compensated does not apply to the important legal documents, which he says have also been lost.

Mr Ross commenced proceedings by way of a statement of claim filed on 1 September 2025. The orders he seeks in the proceedings are that Corrective Services pay the cost to replace all legal documents and personal documents taken by Corrective Services. He says he is not sure of the amount that he is claiming. He says that he is being frustrated in his attempts to recover the documents, albeit the police have told him that the important brief of evidence, which he seeks, is being held in police archives.

As I explained to Mr Ross, in order to be granted leave to proceed with that statement of claim, it is necessary that I be satisfied that he has a prima facie case against Corrective Services. Having a prima facie case is not a high bar in the sense that it is only necessary for him to establish that the case is not hopeless or inarguable: see Application of Malcolm Huntley Potier [2012] NSWCA 222 at [16]-[17] (Allsop ACJ and Basten JA); Edmonds v Barrington Winstanley Group Pty Ltd [2023] NSWCA 166 at [13]-[15] (Stern JA, with whom Meagher and Leeming JJA agreed).

Mr Ross seeks that Corrective Services pay him some unspecified amount in respect of the loss of those important legal documents. Accepting for the purposes of this application, that those important legal documents have been lost in the circumstances alleged by Mr Ross, that is, they have been removed and taken by some unknown Corrective Services officer, the question arises as to whether those facts give rise to some prima facie case against Corrective Services.

The problem for the plaintiff is that he is essentially seeking payment of money from Corrective Services in circumstances in which there is no evidence that obtaining a new copy of the important brief of evidence from the police would cost any particular amount. I have some sympathy for the plaintiff, in the sense that he is in custody, has been in custody for a long while, and will be there for some years yet and he is seeking to pursue an appeal against his conviction. He is hamstrung in his ability to pursue that appeal without having his, what he described as, legal documents.

Further, Mr Ross has already been paid a sum in respect of the loss of some items, such that Corrective Services must be accepting that at some stage some of the plaintiff’s property was lost. It must be important that the plaintiff be provided access to the brief of evidence so that he can prepare any appeal which he wishes to pursue. Of course, I am making no comment on the nature or prospects of that appeal, or whether it should be pursued, but I am sympathetic to the plaintiff’s complaint that he has been unable to obtain a copy of the brief of evidence.

Having said that, the claim that he wishes to pursue is simply a claim for money against Corrective Services. Leaving aside the fact that there is nothing in the statement of claim which demonstrates any real cause of action (that may be because of his difficulty in properly pleading a cause of action), I am unable to anticipate any basis on which he might be able to pursue a successful claim for money from Corrective Services, having regard to the evidence before me.

If, as he says, the police have said that they hold a copy of the brief in police archives, the appropriate course would be for him to try and obtain a copy of that brief, from police archives. To the extent that that involves some payment of photocopying fees, then if it is established that such a payment is required, then the proper approach may be to again seek assistance from Corrective Services, having regard to what has occurred previously. That is, Corrective Services have acknowledged that there was a loss of his goods and that he should be paid some sum for that loss. If, because of some failure on the part of Corrective Services, there is a cost to obtaining a copy of the police brief, then no doubt he can approach Corrective Services about that and see if they can assist.

In all the circumstances, and based on the evidence before me, I am not satisfied that the plaintiff has demonstrated any prima facie grounds for the claim that is set out in the statement of claim, and in those circumstances, leave to proceed against the defendant is refused.

Therefore, I make the following orders: